Virtual LoadMaster End-User License Agreement
KEMP Technologies, Inc. VLM ® LICENSE AGREEMENT
This is a legal agreement (“AGREEMENT”) between you, the Licensed User, and KEMP Technologies, Inc. Your location of receipt of this product or feature release (both hereinafter “VLM”) or technical support (hereinafter “SUPPORT”) determines the providing entity hereunder (the applicable entity is hereinafter referred to as “KEMP ”). KEMP Technologies, Inc. a New York corporation, licenses this PRODUCT, HEREAFTER CALLED “VLM” in the Americas, Japan, Europe, the Middle East, Africa, Asia and the Pacific rim and provides SUPPORT only for 30 days from the date of registration. BY INSTALLING AND/OR USING THE VLM, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL AND/OR USE THE VLM.
1. GRANT OF LICENSE.
Grant. KEMP’s VLM provides services on a virtual machine within a virtual KEMP VLM environment (“Licensed Server”). This product does not include a hardware platform. VLM is activated by licenses (“Licenses”). Except as set forth herein, this VLM is licensed for evaluation as either a single or high availability pair per end user. Licenses for other KEMP products or other editions of the same VLM may not be used to increase the allowable use for the VLM. KEMP grants to you a worldwide, nonexclusive right to use the VLM only on Licensed Servers and only in accordance with this AGREEMENT and the SOFTWARE user documentation. KEMP retains ownership of all of KEMP VLM . You will maintain the copyright notice and any other notices that appear on the SOFTWARE.
a. Perpetual License. If not otherwise time restricted as set forth below, the SOFTWARE is licensed on a perpetual basis. KEMP VLM SOFTWARE is offered with a perpetual license, 30 day warranty to be performed only during KEMP normal days and hours of business.
b. Not for Resale. This SOFTWARE is “Not For Resale SOFTWARE”.
c. Evaluation. If this SOFTWARE is not intended solely for “Evaluation SOFTWARE,” notwithstanding any term to the contrary in this AGREEMENT, your License permits use for your internal demonstration, test, evaluation and operational purposes.
d. This license denies you the user any right to change any code of this SOFTWARE except as needed for the necessary configuration of the functions and features of the VLM. The User of the software is forbidden any rights to modify and redistribute the creative works and software, both of which are forbidden by the defaults of copyright. You receive no License hereunder to incorporate the SOFTWARE or any portion thereof in your own product(s).
e. Internal Use Only. You may make at most two (2) copies of the SOFTWARE in machine-readable form solely for backup purposes, provided that you reproduce all proprietary notices on the copy.
f. Virtual LoadMaster (VLM) must be activated with a license prior to use. A 30-day temporary license(s) may be provided for evaluation purposes free of charge. When a temporary license expires, the VLM will stop functioning. To receive a Permanent License(s), payment in full must be received by KEMP Technologies. Payment may be provided via credit card (Visa or MasterCard), check or bank wire transfer. Once a Permanent License(s) is provided, the order may not be canceled and refund will not be issued. If payment "Terms" have been arranged, Permanent License(s) will only be provide after payment in full has been received by KEMP Technologies.
2. SUBSCRIPTION RIGHTS.
Your subscription for VLM Licenses shall begin on the date the Licenses are delivered to you by email. During the initial or a renewal Subscription Term, KEMP may, from time to time, generally make Updates available for licensing to the public. Upon general availability of Updates during the Subscription Term, KEMP shall provide you with Updates for covered Licenses. Any such Updates so delivered to you shall be considered SOFTWARE under the terms of this AGREEMENT, except they are not covered by the Limited Warranty applicable to SOFTWARE, to the extent permitted by applicable law. Subscription may be obtained for the SOFTWARE until it is no longer offered in accordance with the KEMP VLM Support Lifecycle Policy posted at www.KEMPtechnologies .com.
You acknowledge that KEMP may develop and market new or different computer programs or editions of the SOFTWARE that use portions of the SOFTWARE and that perform all or part of the functions performed by the SOFTWARE. Nothing contained in this AGREEMENT shall give you any rights with respect to such new or different computer programs or editions. You also acknowledge that KEMP is not obligated under this AGREEMENT to make any Updates available to the public.
3. DESCRIPTION OF OTHER RIGHTS, LIMITATIONS, AND OBLIGATIONS. Unless expressly permitted by applicable law, you may not transfer, rent, timeshare, or lease the SOFTWARE. Except as specifically licensed herein, you may not modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, or copy (except for backup as permitted above) the SOFTWARE, except to the extent such foregoing restriction is expressly prohibited by applicable law. You may not remove any proprietary notices, labels, or marks on any SOFTWARE. To the extent permitted by applicable law, you agree to allow KEMP to audit your compliance with the terms of this AGREEMENT upon prior written notice during normal business hours. Notwithstanding the foregoing, this AGREEMENT shall not prevent or restrict you from exercising additional or different rights to any free, open source code, documentation and materials contained in or provided with the SOFTWARE in accordance with the applicable free, open source license for such code, documentation, and materials.
YOU MAY NOT USE, COPY, MODIFY, OR TRANSFER THE SOFTWARE OR ANY COPY IN WHOLE OR IN PART, OR GRANT ANY RIGHTS IN THE SOFTWARE OR ACCOMPANYING DOCUMENTATION, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. ALL RIGHTS NOT EXPRESSLY GRANTED ARE RESERVED BY KEMP OR ITS SUPPLIERS.
You hereby agree, that to the extent that any applicable mandatory laws (such as, for example, national laws implementing EC Directive 91/250 on the Legal Protection of Computer Programs) give you the right to perform any of the aforementioned activities without the consent of KEMP to gain certain information about the SOFTWARE, before you exercise any such rights, you shall first request such information from KEMP in writing detailing the purpose for which you need the information. Only if and after KEMP , at its sole discretion, partly or completely denies your request, shall you exercise your statutory rights.
4. INFRINGEMENT INDEMNIFICATION.
KEMP shall indemnify and defend, or at its option, settle any claim, suit, or proceeding brought against you based on an allegation that the KEMP’s VLM infringes upon any patent or copyright of any third party (“Infringement Claim”), provided you promptly notify KEMP in writing of your notification or discovery of an Infringement Claim such that KEMP is not prejudiced by any delay in such notification. KEMP will have sole control over the defense or settlement of any Infringement Claim and you will provide reasonable assistance in the defense of the same. Following notice of an Infringement Claim or if KEMP believes such a claim is likely, KEMP may at its sole expense and option: (i) procure for you the right to continue to use the alleged infringing KEMP VLM; (ii) replace or modify the KEMP VLM to make it non-infringing; or (iii) accept return of the SOFTWARE based on: (i) your use of any KEMP VLM after notice that you should cease use of the same due to an Infringement Claim; (ii) any modification of the KEMP VLM by you or at your direction; or (iii) your combination of KEMP VLM with other programs, data, hardware, or other materials, if such Infringement Claim would have been avoided by the use of the KEMP VLM alone. THE FOREGOING STATES YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM AND DOES NOT COVER OPEN SOURCE SOFTWARE.
5. LIMITED WARRANTY AND DISCLAIMER.
KEMP warrants that for a period of ninety (30) days from the date of delivery of the SOFTWARE to you, the VLM will perform substantially in accordance with the KEMP VLM documentation published by KEMP and included with the VLM software. KEMP’s entire liability and your exclusive remedy under this warranty (which is subject to you returning the SOFTWARE to KEMP) will be, at the sole option of KEMP and subject to applicable law, to replace the media and/or SOFTWARE terminate this AGREEMENT. KEMP will provide the SUPPORT requested by you in a professional and workmanlike manner, but KEMP cannot guarantee that every question or problem raised by you will be resolved or resolved in a certain amount of time.
TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE ABOVE LIMITED WARRANTY FOR SOFTWARE, KEMP MAKES AND YOU RECEIVE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; AND KEMP AND ITS SUPPLIERS SPECIFICALLY DISCLAIM WITH RESPECT TO SOFTWARE, UPDATES, SUBSCRIPTION ADVANTAGE, AND SUPPORT ANY CONDITIONS OF QUALITY, AVAILABILITY, RELIABILITY, SECURITY, LACK OF VIRUSES, BUGS, OR ERRORS, AND ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR DISTRIBUTION WITH ANY EQUIPMENT THE FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. YOU ASSUME THE RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND HARDWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE AND HARDWARE.
6. PROPRIETARY RIGHTS.
No title to or ownership of the KEMP VLM is transferred to you. KEMP owns and retains all title and ownership of all intellectual property rights in and to the KEMP VLM , including any adaptations or copies. You acquire only a limited License to use the KEMP VLM .
7. EXPORT RESTRICTION.
You agree that you will not export, re-export, or import the SOFTWARE in any form without the appropriate government licenses. You understand that under no circumstances may the SOFTWARE be exported to any country subject to U.S. embargo or to U.S.-designated denied persons or prohibited entities or U.S. specially designated nationals.
8. LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER KEMP NOR ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS SHALL BE LIABLE FOR ANY LOSS OF DATA OR PRIVACY, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, COST OF RECOVERY, LOSS ARISING FROM YOUR USE OF THE SOFTWARE OR SUPPORT, OR DAMAGE ARISING FROM YOUR USE OF THIRD PARTY SOFTWARE OR HARDWARE OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; OR THE USE OF THE SOFTWARE OR SUPPORT, REFERENCE MATERIALS, OR ACCOMPANYING DOCUMENTATION; OR YOUR EXPORTATION, REEXPORTATION, OR IMPORTATION OF THE SOFTWARE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF KEMP , ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY OF KEMP , ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS EXCEED THE AMOUNT PAID FOR THE SOFTWARE OR SUPPORT AT ISSUE. YOU ACKNOWLEDGE THAT THE LICENSE OR SUPPORT FEE REFLECTS THIS ALLOCATION OF RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
For purposes of this AGREEMENT, the term “KEMP AFFILIATE” shall mean any legal entity fifty percent (50%) or more of the voting interests in which are owned directly or indirectly by KEMP Technologies, Inc. Affiliates, suppliers, and authorized distributors are intended to be third party beneficiaries of this AGREEMENT.
9. TERMINATION.
This AGREEMENT is effective until terminated. You may terminate this AGREEMENT at any time by removing the SOFTWARE from your computers and destroying all copies and providing written notice to KEMP KEMP may terminate this AGREEMENT at any time for your breach of this AGREEMENT. Unauthorized copying of the SOFTWARE or the accompanying documentation or otherwise failing to comply with the license grant of this AGREEMENT will result in automatic termination of this AGREEMENT and will make available to KEMP all other legal remedies. You agree and acknowledge that your material breach of this AGREEMENT shall cause KEMP irreparable harm for which monetary damages alone would be inadequate and that, to the extent permitted by applicable law, KEMP shall be entitled to injunctive or equitable relief without the need for posting a bond. Upon termination of this AGREEMENT, the License granted herein will terminate and you must immediately destroy the SOFTWARE and accompanying documentation, and all backup copies thereof.
10. U.S. GOVERNMENT END-USERS.
If you are a U.S. Government agency, in accordance with Section 12.212 of the Federal Acquisition Regulation (48 CFR 12.212 (October 1995)) and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (48 CFR 227.7202-1, 227.7202-3 (June 1995)), you hereby acknowledge that the SOFTWARE constitutes “Commercial Computer Software” and that the use, duplication, and disclosure of the SOFTWARE by the U.S. Government or any of its agencies is governed by, and is subject to, all of the terms, conditions, restrictions, and limitations set forth in this standard commercial license AGREEMENT. In the event that, for any reason, Sections 12.212, 227.7202-1 or 227.7202-3 are deemed not applicable, you hereby acknowledge that the Government’s right to use, duplicate, or disclose the SOFTWARE are “Restricted Rights” as defined in 48 CFR Section 52.227-19©(1) and (2) (June 1987), or DFARS 252.227-7014(a)(14) (June 1995), as applicable. Manufacturer is KEMP Technologies, Inc. , 12 Old Dock Road, Yaphank, NY 11980.
11. AUTHORIZED DISTRIBUTORS AND RESELLERS.
KEMP authorized distributors and resellers do not have the right to make modifications to this AGREEMENT or to make any additional representations, commitments, or warranties binding on KEMP .
12. CHOICE OF LAW AND VENUE.
If provider is KEMP Technologies, Inc. this AGREEMENT will be governed by the laws of the State of New York without reference to conflict of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods, and in any dispute arising out of this AGREEMENT, you consent to the exclusive personal jurisdiction and venue in the State and Federal courts within Suffolk County, New York.
13. HOW TO CONTACT KEMP.
Should you have any questions concerning this AGREEMENT or want to contact KEMP for any reason, write to KEMP at the following address:
KEMP Technologies, Inc.,
Customer Support,
12 Old Dock Road
Yaphank, NY 11980.
14. TRADEMARKS.
KEMP, VLM, and LoadMaster, are trademarks and/or registered trademarks of KEMP Technologies, Inc., in the U.S. and other countries.